Sunday, June 01, 2014

Colleges and universities almost certainly face a deluge of lawsuits from accused males over the mishandling of sexual misconduct hearings. Columbia and Drew, for instance, have joined the ranks of universities sued by male students claiming that unfair processes led to disciplinary action against them.

At first blush, the Drew case involves a typical he-said-she-said situation, but in fact there were several twists. The accused student, Kevin Parisi, suggests that his accuser, Kai Boulware, had a motive to lie about the consensual nature of their one-time intercourse--to protect her relationship with her boyfriend, Jacob Levy. Parisi claimed that Boulware told him that her boyfriend pressured her to make the complaint, and that she had told another acquaintance the intercourse was consensual. (The acquaintance subsequently confirmed this in a conversation with a private investigator.) The complaint also alleges that Boulware refused to cooperate with a police investigation of the case.

The twist in this case is that the evidence was so weak--indeed, the acquaintance's testimony wholly undermined Boulware's portrayal of events--that Drew found Parisi not culpable. But this occurred after a three-month process (during most of which Drew did no investigation, including, the complaint alleges, not looking into Parisi's assertion that Boulware had contacted him in violation of a university-demanded no contact order). For that period, Drew ordered Parisi to remain off campus, including staying away from his dorm room, except for attending class.

First, the university defines sexual assault as not only rape, as understood in the criminal justice system, but also "any intentional sexual touching, however slight, with any object without a person's consent. Intentional sexual contact includes contact with the breasts, buttocks, groin, or touching another with any of these body parts, or making another person touch any of these body parts; any intentional bodily contact in a sexual manner." How many people would consider such behavior--while indefensible--to constitute rape? To Columbia, however, forcible sexual penetration and nonconsensual "sexual touching, however slight" are both "sexual assault." And the fliers suggest that the message has been received.

Second, while the university notes that sexual assault, by definition, comes without consent, it modifies this provision in a critical way: "Alcohol and other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and affirmatively given." Taken literally, then, any alcohol use by the female party to sexual intercourse could call into question whether a Columbia tribunal will subsequently brand a male student a rapist, since even if the female gave consent, the university claim non-consensual contact on grounds of "confusion over whether consent is freely and affirmatively given."

In this atmosphere, accused students appear to be guilty until proven innocent, even as Title IX claims suggesting that the definitions above (coupled with procedures that deny accused students the right to counsel) unlawfully act against the rights of accusers.

As colleges adopt a de facto presumption of guilt in undertaking investigations for which they are in no way competent, they will be hit with more and more of these kinds of lawsuits. And it's fair to say that the presidents and administrators of these institutions are bringing it on themselves.